Friday, September 29, 2006, 9/29/2006 11:07:00 AM

Surreptitious Tape Recording -- Think Long and Hard

On the heels of the Hewlett-Packard mess, with resignations from the General Counsel and much pleading of the Fifth Amendment, comes a revelation that Jeanine Pirro, Republican candidate for New York Attorney General is being investigated for taping (or maybe considering taping) her own husband. The New York Times (subscription req'd) report is here.

This area is fraught enough -- and confusing enough -- that everyone needs to take a deep breath before doing anything.

Surreptitious tape recording of telephone conversations is a particularly tricky area. As a matter of federal law, the subject is governed -- at least for now -- by the federal wiretap law, 18 U.S.C. § 2510, et seq., Ch. 119 - Wire Interception and Interception of Oral Communications. Section 2511(d) of the law provides that

It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.

Thus, so long as one party to the telephone conversation - here, presumably, the person recording - consents to the recording, it does not violate federal law.

Legality under federal law, though, won't get you all the way home. It's important to consider state law as well. At our last count, 37 states as well as the District of Columbia permitted single-party consensual tape recording of telephone conversations consistent with federal law. Thirteen states (listed below) forbid such recording. The less stringent federal law, however, will not preempt stricter state laws. See Roberts v. Americable International, Inc., 893 F. Supp. 499 (E.D. Cal. 1995). A state may also be permitted to enforce its more strict law even though the federal law and the state law of the state in which the recording is done permit the recording. See, e.g., Krauss v. Globe International, Inc., No. 18008-92 (N.Y. Sup. Ct. Sept. 11, 1995) (holding that New York law applies to interstate telephone calls where the injury occurred in New York). Therefore, it is necessary to be mindful of where the non-consenting party is located.